Cook v. Cook, 52535

Decision Date11 June 1982
Docket NumberNo. 52535,52535
Citation646 P.2d 464,231 Kan. 391
PartiesKeith W. COOK, Appellee, v. Eula A. COOK, Appellant.
CourtKansas Supreme Court

Syllabus by the Court

1. Appellate review of a trial court's approval of a property settlement agreement is limited to considering whether the trial court abused its discretion.

2. Abuse of judicial discretion, as that term is ordinarily used, implies not merely an error in judgment, but perversity of will, passion or moral delinquency when such discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.

3. Judicial discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.

4. In an appeal challenging the trial court's approval of a property settlement agreement, the record is examined and it is held : The trial court did not abuse its judicial discretion in approving a property settlement agreement, or in approving attorney fees.

Jerry D. Fairbanks, of Whalen, McGinley & Fairbanks, P. A., Goodland, argued the cause and was on the brief for appellant.

Floyd E. Jensen, of Kite & Day, St. Francis, argued the cause and was on the brief for appellee.

MILLER, Justice:

This is a divorce case. The defendant, Eula A. Cook, appeals from the trial court's approval of a property settlement agreement. The matter was heard by a panel of the Court of Appeals and its opinion, reversing the trial court, appears as Cook v. Cook, 7 Kan.App.2d 179, 638 P.2d 980 (1982). The issues are whether the trial court abused its discretion in approving the property settlement agreement entered into by the parties, whether noncompliance with Supreme Court Rule No. 164 is jurisdictional, and whether defendant's attorney fees were excessive. The Court of Appeals held that non-compliance with Rule 164 is not jurisdictional, but that the trial court abused its discretion in approving the property settlement agreement and in approving the fees. We granted review.

The facts are set out in some detail in the opinion of the Court of Appeals, and those facts need not be restated at length here. The marriage of the parties lasted for thirty years, during which they accumulated substantial property including but not limited to two homes, over 4,000 acres of crop and pasture land in Kansas and Colorado mineral interests, machinery, livestock, growing crops, feed, grain, credits and investments. Plaintiff filed a detailed and itemized list of these assets with the trial court, but did not estimate the value. It is agreed that no factual statement as required by Rule No. 164 was furnished to the trial court.

The parties, with the knowledge of their attorneys, engaged a third attorney, Mr. Milliken, to prepare a property settlement agreement. The parties went to his office and he prepared it at their direction. Both plaintiff and defendant signed it. Both asked the trial court to approve it.

Mr. Cook testified that the value of the property going to Mrs. Cook under the property settlement agreement was in the neighborhood of $850,000 to $900,000 and that it was clear and unencumbered. He estimated the value of the property going to him to be in the neighborhood of $2 million dollars, with indebtedness against that property of approximately $1 million dollars, all of which was to be assumed and paid by him. Mrs. Cook did not estimate the value of the property, and no other evidence of value was presented to the court.

The trial judge examined the agreement very carefully, and he conducted a lengthy examination of Mrs. Cook at the close of her testimony, as set forth in the Court of Appeals opinion. The judge then said:

"(D)ivorces are sometimes emotional things and particularly where parties have been married for some thirty (30) years as in this case. I am going to grant the divorce to each party from the other on the grounds of incompatibility. Now, insofar as the property settlement agreement is concerned, I want to make some comments. I don't find from the evidence presented and from the questions that I asked both Mr. and Mrs. Cook any indication of actual duress or coercion in the signing of this property settlement agreement. I think the defendant is a competent person, I think that she understands the nature of the farming operation, she has been involved in it for some thirty (30) years and I think she is aware of the business as you would expect her to be. There are-in fact, I am saying that I feel both the plaintiff and the defendant understand the nature and extent of the property involved in this case. There are many factors which go into an agreement and certainly I am probably not aware of all of those factors. Mrs. Cook referred to the fact that this case and its continuation was upsetting to her and certain members of her family, I'm sure that that is probably true, but I do feel that both parties entered into the agreement, which apparently was prepared by Mr. Milliken and, in fact, states that it was prepared by Mr. Milliken at the direction of the parties, and I feel that they knowingly and voluntarily entered into that property settlement agreement and that both parties have specifically asked me from the witness stand to approve the property settlement agreement today. And these two people are competent adults and they understand and know the nature of their property better than, I'm sure, either of the attorneys and certainly me, and so I'm going to approve the property settlement agreement as it is prepared and based on the questioning and taking into consideration the objection that Mr. Oglevie (defendant's attorney) has registered to the property settlement agreement. But those are the findings that I am going to make in this case in approving the property settlement agreement. Insofar as attorney's fees are concerned, apparently that's been discussed between the clients and counsel, there was no objection registered to that and the attorney's fees may be journalized in accordance with the property settlement agreement and included in the decree in accordance with the testimony entered concerning attorney's fees."

The principal issue is, of course, whether the trial judge abused his discretion in approving the property settlement agreement. K.S.A.1981 Supp. 60-1610(f) (formerly K.S.A. 1610(e) ) requires the trial judge to examine a property settlement agreement to determine whether it is "valid, just and equitable." If the trial court approves the agreement, then pursuant to the statute, the agreement is incorporated in and becomes a part of the final decree. See In re Estate of Sweeney, 210 Kan. 216, 223, 224, 500 P.2d 56 (1972).

Many cases have held that upon appeal, a trial court's division of the property in a divorce case will not be disturbed unless the division is such as to constitute a clear abuse of discretion. McCain v. McCain, 219 Kan. 780, 785, 549 P.2d 896 (1976); Williams v. Williams, 219 Kan. 303, 306, 548 P.2d 794 (1976); Downing v. Downing, 218 Kan. 549, 542 P.2d 709 (1976); LaRue v. LaRue, 216 Kan. 242, 531 P.2d 84 (1975); Stayton v. Stayton, 211 Kan. 560, Syl. P 1, 506 P.2d 1172 (1973).

A trial court has the initial duty of...

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14 cases
  • In re Traster
    • United States
    • Kansas Supreme Court
    • December 19, 2014
    ...a separation agreement before approving it); Cook v. Cook, 7 Kan.App.2d 179, 184, 638 P.2d 980, rev'd on other grounds 231 Kan. 391, 646 P.2d 464 (1982) (“[M]ere agreement by the parties does not vitiate the court's duty to scrutinize the settlement agreement, and if the agreement is not va......
  • Traster v. Traster
    • United States
    • Kansas Supreme Court
    • December 19, 2014
    ...a separation agreement before approving it); Cook v. Cook, 7 Kan.App.2d 179, 184, 638 P.2d 980, rev'd on other grounds 231 Kan. 391, 646 P.2d 464 (1982) (“[M]ere agreement by the parties does not vitiate the court's duty to scrutinize the settlement agreement, and if the agreement is not va......
  • Lone Star Industries, Inc. v. Secretary of Kansas Dept. of Transp.
    • United States
    • Kansas Supreme Court
    • October 21, 1983
    ...be said that the trial court abused its discretion. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973); Cook v. Cook, 231 Kan. 391, 394, 646 P.2d 464 (1982). There were many common facts in these cases. Each arose from the same highway project. Both plaintiff businesses alleged the......
  • Reich v. Reich
    • United States
    • Kansas Supreme Court
    • April 27, 1984
    ...the funds to pay an award of money to the plaintiff, and that the trial court modify the award accordingly. See Cook v. Cook, 231 Kan. 391, 646 P.2d 464 (1982). In my opinion, the letter of credit and the manner in which it was used in connection with "Plaintiff's Proposed Findings Concerni......
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